Index Topics

Facts

A group of doctors, clinics, clergy and a woman challenged Pennsylvania's anti-abortion legislation. The district court denied the plaintiff's motion for injunctive relief. On appeal, the U.S. Court of Appeals for the Third Circuit held that major portions of the statute were unconstitutional under Akron v. Akron Center for Reproductive Health Inc., 462 U.S. 416. The provisions found unconstitutional were those requiring women to be told: (1) that abortion may have detrimental physical and psychological effects that are not accurately foreseeable; (2) the probable gestational age of her unborn child at the time of the abortion; (3) that medical assistance benefits may be available for prenatal care, childbirth and neonatal care; (4) that the father is required to assist in supporting the child; and (5) that she has the right to review certain printed materials describing the characteristics of the unborn child and listing agencies offering alternatives to abortions. The court also found that provisions requiring unemancipated minors to obtain either consent of parents or a court order was found unconstitutional under Bellotti v. Baird, 443 U.S. 622 (1979). Pennsylvania petitioned the U.S. Supreme Court for certiorari which was granted.

APA's Position

APA's amicus brief argued that: (1) the mandatory provisions of the act impermissibly intruded upon the discretion of a pregnant woman's physician to ensure effective counseling and unduly interfered with a woman's constitutional right to make decisions concerning abortion; (2) the restrictive definition of medical risk in the act impermissibly precluded consideration of all factors relevant to an informed determination of maternal health, and thereby unduly burdened a woman's abortion decision; (3) the parental/judicial consent provisions unduly burdened the right of minors to seek abortions and failed to meet the Bellotti II confidentiality requirement; and (4) the requirement that minors fourteen years of age and over seek parental or judicial consent for abortions did not satisfy the Planned Parenthood v. Danforth, 428 U.S. 52 (1976) significant state interest test.

Results

The U.S. Supreme Court struck down most of the provisions of the Pennsylvania statute and reiterated the Court's earlier statements that the states are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies. The Court found that the Pennsylvania statute "wholly subordinate[d] constitutional privacy interests and concerns with maternal health [to the state's] effort to deter a woman from making a decision that, with her physician, is hers to make." The Court adopted APA's argument that the mandatory informed consent provisions impermissibly intruded upon the discretion of the physician and counselor to ensure effective counseling and unduly interfered with a woman's right to make abortion decisions. The Court also struck down the provision requiring physicians to use the method of abortion that would preserve the life of the fetus unless it presented a significantly lesser medical risk to the life or health of the mother. Finally, the Court struck down the statute's reporting requirements as an invasion of privacy of those women who choose abortion because of the possibility that her decision and identity would become known. The Court also struck down the requirement that a second physician be present to take care of aborted viable fetuses because it had no exception for medical emergencies in the event the woman's life was at risk. The Court declined to address whether the provisions for parental/judicial consent unduly burdened minors' rights. Because the Pennsylvania Supreme Court had recently promulgated rules which purportedly implemented the constitutional requirement that appeals from judicial denials of authorization for abortions for minors be expeditious and confidential, the Court stated that it was more appropriate for the lower courts to pass on the constitutionality of that provision in the first instance.